FAQ: What is the Major Questions Doctrine?, by Will Yeatman and Frank Garrison

In West Virginia v. EPA, the Supreme Court announced the arrival of the major questions doctrine (MQD), or the principle that agencies can’t turn old laws into new laws through expansive statutory interpretation. It is probably the most important doctrinal development in administrative law since Chevron v. NRDC. In the FAQ below, we try to defend the MQD from recent criticisms.

Are There Two Major Questions Doctrines?

The Supreme Court employs two distinct versions of the major questions doctrine (MQD), according to Professor Cass Sunstein. He identifies a “weak” version in cases like FDA v. Brown & Williamson Tobacco Corp, where the MQD operates as a “carveout from Chevron deference.” Specifically, he argues that “the weak version qualifies [Chevron] by adding that Congress has not implicitly delegated agencies the power to decide major questions.” And, in cases like UARG v. EPA, Sunstein identifies a “strong” MQD that operates as a clear statement rule. Under this amped-up MQD, agencies “must be able to show clear congressional authorization” if they are to exercise “major” regulatory authority.

In a recent MQD critique, Professor Mila Sohoni adopts Sunstein’s framework, although she uses the modifiers “old” and “new” in lieu of “weak” and “strong” (respectively). Quoting Sunstein, she describes the old MQD as a “major questions exception to Chevron deference.” The new MQD, she writes, “is not a carve out from Chevron deference … [but] is instead a clear statement rule that requires an express statutory statement to allow an agency to exercise major regulatory power.” She points to a quartet of cases—published after Sunstein’s article—that exemplify the Court’s sub-silentio embrace of the new/strong MQD (West Virginia v. EPA; NFIB v. OSHA; Alabama Ass’n of Realtors v. HHS; Biden v. Missouri).

But aren’t Sunstein and Sohoni talking about flip sides of the same coin? Their dichotomies—weak/old versus strong/new—seem to be two formulations of the same concept. As a “Chevron carveout,” the weak/old MQD stands for the idea that “Congress has not implicitly delegated agencies the power to decide major questions.” But without such implicit power, the agency’s claim to regulatory authority would be ultra vires (and therefore unreasonable). There is no meaningful difference between saying “Congress doesn’t implicitly delegate major regulatory authority,” and saying, “Congress must explicitly delegate major regulatory authority.”

How, then, do Sunstein and Sohoni distinguish their two versions of the MQD? They argue that the weak/old MQD was more generous to the government than the strong/new MQD. Why? The difference, they say, is that the government can win under the latter, but not the former. “It is important to see,” Sunstein writes, “that the carve-out theory does not necessarily mean that the agency will lose; it means only that the question of law will be resolved independently by courts.” Yet under the strong MQD “if a statute is ambiguous, agencies … will not merely lose deference; they lose.” Citing Sunstein, Sohoni makes the same point. As evidence, they point to King v. Burwell.

The problem with relying on King is that the case is anomalous, and not just because it’s the only MQD precedent where the government prevailed. Every MQD case—except for King—involves an agency’s expansive interpretation of a long-extant statute. And alone among the Supreme Court’s MQD decisions, King pertains to a benefits regime, rather than regulatory strictures over private conduct. King also presents peculiar politics: it’s the only instance where left-leaning Justices applied the MQD over a dissent from the Court’s “conservative” block.

Of all King’s distinctions, the most important is that the Court believed a novel statutory scheme was at stake. Every other MQD case involved an agency’s “unheralded” claim of power under an “long-extant” enabling act. For these other MQD cases, the underlying statute continued to operate, as it had for decades, when the government lost. In King, by contrast, the majority thought that ruling against the government would effectively “destroy” the Affordable Care Act. When a statute hangs in the balance—instead of an agency’s adventurism under a well-established organic act—different considerations can come into play.

This is not to condone the majority’s reasoning in King. Instead, our point is that the case is dissimilar from the other MQD cases, which otherwise form a cohesive whole. Except for King, all MQD cases fit a pattern involving new (and expansive) agency interpretations of old statutes. Respectfully, we disagree that King reflects a class of MQD controversies that the government can win. And, absent King, the MQD line of cases does not demonstrate the duality—weak/old vs. new/strong—that the critics claim.

Are There Two MQD Methodologies?

Professor Sohoni argues that the old and new MQDs diverge not only in content, but also in method. Under the old MQD, she writes, “the fact that the question was a ‘major’ one formed just one consideration in the Court’s construction of the relevant statutes.” According to Sohoni, this old MQD methodology covers “far more ground” than the new MQD’s “binary inquiry into whether the statute contained a clear statement.” Simply put, she argues that the new MQD shortchanges statutory interpretation.

Professor Tom Merrill makes a similar point. “Until 2022,” Merrill writes, the doctrine “had manifested [itself] almost exclusively in the course of exercises in ordinary statutory interpretation.” But then, in NFIB v. OSHA and West Virginia v. EPA, the Court “reformulate[ed]” the MQD, such that there are only two inquiries: whether the regulatory action is major and, if so, whether there is a clear congressional authorization. Merrill is critical of what he sees as the Court’s turn away from “the world of conventional statutory interpretation.”

At least in part, Sohoni and Merrill root their methodological criticisms in recent MQD cases emanating from the Supreme Court’s emergency docket (NFIB v. OSHA and Alabama Ass’n of Realtors v. HHS). In these controversies, however, the Court hadn’t yet reached the merits. At this preliminary juncture in the litigation, it doesn’t seem fair to fault the Court for a lack of thoroughness in its statutory interpretation. After all, the Court is under no compulsion to even issue an opinion for cases on its emergency docket.

Turning to West Virginia v. EPA, we think the critics are unduly harsh in their assessment of that case’s method of statutory interpretation. That opinion’s reasoning is more robust in its analysis than a simple a “binary” inquiry into the underlying policy’s economic and political significance. For example, the Court scrutinized the structure of the Clean Air Act, and thereby discerned that the agency’s assertion of authority rested on an “ancillary” provision described by one lawmaker as an “obscure, never-used section of the law.” Later in the opinion, the Court looked closely at the regulatory history, finding a “consistent understanding” up until the agency’s unprecedented claim of major regulatory power. Accordingly, West Virginia v. EPA demonstrates at least two tools of construction: statutory structure and agency custom.

The majority, moreover, squarely addressed the government’s (and the dissent’s) text-based argument. The statute called for a “system” of emissions controls. The government pointed to the dictionary definition of “system” (“an aggregation or assemblage of objects united by some form of regular interaction”) and argued that its preferred policy meets this definition. Yet “almost anything could constitute such a ‘system,’” the majority countered, “shorn of all context, the word is an empty vessel.” The government’s textualist argument makes sense only “as a matter of definitional possibilities.”

To be sure, West Virginia v. EPA places a greater emphasis on the MQD than prior cases. But maybe there’s an innocuous reason why. In the decision below, the D.C. Circuit seemed to go out of its way to denigrate the “so-called major questions doctrine,” as the split panel put it. Perhaps the Court’s unusual focus on the MQD was prompted by a provocation.

Regardless, West Virginia v. EPA doesn’t reflect a significant methodological departure from its doctrinal priors. In that case, as in earlier MQD cases (on the merits), the significance of the underlying policy was among the factors that the Court considered in denying the agency’s assertion of an implicit delegation to resolve major questions.

What, Then, is the MQD?

As we discussed above, the MQD comports to different descriptions. You can call it a presumption that agencies act unreasonably when they claim “major” authority based on vague statutory text; or you can call it a presumption that congress provides a clear statement when it delegates major regulatory power. Either way, you’re saying the same thing.

For our part, we prefer yet a third framework for describing the MQD: namely, as-applied nondelegation. In the MQD cases, if the agency’s expansive interpretation were right, then the statute effectively means whatever the agency says it means, and there could be no “intelligible principle” limiting the agency’s discretion. The result would be a serious nondelegation problem. As Justice Gorsuch has explained, the MQD “enforce[s] the non-delegation doctrine … by giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.” Of course, this is simply a category of constitutional avoidance (which is a fourth way to describe the MQD).

As for the purported bifurcation of the MQD into weak/old and strong/new versions, we respectfully disagree. Instead, we see “the normal parameters of doctrinal evolution.”

Why Did the Court Turn to the MQD?

The MQD is not new. In a concurrence to West Virginia v. EPA, Justice Gorsuch explained, “[s]ome version of [the doctrine] can be traced to at least 1897,” when the Supreme Court, in ICC v. Cincinnati, denied the agency’s “vast and comprehensive” claim of authority absent a clear delegation in the statutory text.

Over the past two decades, the MQD has risen in prominence as the primary constitutional check against a surfeit of executive authority. The doctrine’s resurgence is a response to the rise of what then-professor Elena Kagan called “presidential administration.” Due to the relative ease of regulating compared to legislating, the president—and not Congress—now leads “in setting the direction and influencing the outcome of” administrative policy in American government. Rather than persuade lawmakers, contemporary presidents chart a unilateral path by directing agencies to adopt expansive interpretations of long extant statutes.

To curb the worst excesses of executive lawmaking inherent to “presidential administration,” the Supreme Court has embraced the MQD.

Tellingly, what Justice Kagan calls the “key” MQD case, FDA v. Brown & Williamson Tobacco Corp., involved a challenge to a sweeping tobacco regulation ordered by President Clinton, which was one of the first examples of “presidential administration” cited by Kagan in her famous article.

Indeed, all the Supreme Court’s recent major questions cases were prompted by presidential directives for agencies to take on some novel and capacious authority, usually for big policies that Congress had declined to pass. In this manner, President Biden ordered the vaccine mandate at issue in NFIB v. OSHA. Both Biden and Trump ordered versions of the eviction moratorium in Alabama Association of Realtors v. HHS. And President Obama ordered the climate rule at the heart of the controversy in West Virginia v. EPA.

Other scholars have made the connection between executive overreach and the MQD. In a recent Notice & Comment post, Professor Dan Farber drew the same link between executive overreach and the MQD. Farber questioned “the conventional wisdom” that MQD “is an offspring of the nondelegation doctrine.” Instead, he advanced “a different understanding of the major question doctrine, one aimed more at constraining the President than at disciplining Congress for giving away too much power.” We think both Farber and the conventional wisdom are correct. MQD is (and always has been) an offshoot of the nondelegation doctrine. And it has reemerged over the last two decades in response to the rise of presidential administration.

How Will the Lower Courts Respond?

Some worry about the fallout in the lower courts. Professor Merrill, for example, warns that the MQD’s indeterminacy “raises the prospect of all sorts of confusion and conflicts in the circuits breaking out.” On this note, we echo Professor Kristin Hickman’s observation that “the major questions doctrine is not so standardless as some detractors suggest.” We won’t rehash them, but in West Virginia v. EPA, the Court set forth criteria to guide lower courts in identifying “major” questions.

Professor Sohoni expressed concern about the administrative burden on the judiciary. She writes that “hopeful citations” to MQD cases “have already begun to pop from thin air,” and that such “challenges will load the Court’s docket for years to come.” But in our experience, MQD claims have been common since at least UARG v. EPA, more than 6 years ago, and there have been no problems with clogged dockets.

It’s possible that West Virginia v. EPA could reduce the judiciary’s administrative burden. Remember, Chief Justice Roberts’s majority opinion “announces the arrival of the ‘major questions doctrine,’” as put by the dissent. In making this “announcement,” perhaps the majority was trying to send a message to the White House to cut out all this interpretive adventurism. Were the president to take heed, there would be fewer MQD cases.

William Yeatman is a senior legal fellow and Frank Garrison is an attorney, at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.

FAQ: What is the Major Questions Doctrine?, by Will Yeatman and Frank Garrison

FAQ: What is the Major Questions Doctrine?, by Will Yeatman and Frank Garrison